Opinion
No. 353825
02-17-2022
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Arthur JOHNSON, Jr., Defendant-Appellant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Autumn A. Gruss, Assistant Attorney General, and Michael D. Findlay, Prosecuting Attorney, for the people. Robert A. Johnson, Jr., in propria persona, and State Appellate Defender (by Matthew A. Monahan ) for defendant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Autumn A. Gruss, Assistant Attorney General, and Michael D. Findlay, Prosecuting Attorney, for the people.
Robert A. Johnson, Jr., in propria persona, and State Appellate Defender (by Matthew A. Monahan ) for defendant.
Before: Markey, P.J., and Shapiro and Ronayne Krause, JJ.
Markey, P.J. A jury convicted defendant of witness retaliation, MCL 750.122(8). He was sentenced as a fourth-offense habitual offender, MCL 769.12, to 6 to 30 years’ imprisonment. Defendant appeals by right. We reverse and remand for a new trial.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In March 2018, defendant, Robert A. Johnson, Jr., was convicted by a jury of resisting or obstructing a police officer, MCL 750.81d(1), and allowing a dog to stray off-leash, MCL 287.262. See People v. Johnson , unpublished per curiam opinion of the Court of Appeals, issued January 28, 2020 (Docket No. 343882), p. 1, 2020 WL 448302. This Court affirmed the convictions, which arose out of an incident involving defendant's dog and an altercation between defendant and a police officer who had responded to reports of a dog at large. Id. At that earlier trial, several witnesses testified about the events that resulted in defendant's convictions. Id. at 2. One of those witnesses was then-14-year-old BP. BP testified that he encountered a three-legged white pit bull—the dog at issue—as BP walked to a clinic for a physical therapy appointment. BP further testified that the dog was barking, that the dog chased him, that BP was afraid that the dog was going to bite him, and that someone then called the dog back and BP was able to safely enter the clinic. The jury viewed a video of BP's encounter with the dog. Defendant attempted to impeach BP's trial testimony with the video footage and a written statement that BP had provided to the police. Defendant's effort at impeachment primarily concerned whether BP was running or walking during portions of the episode. We note that any purported discrepancies in BP's account of events had no real bearing on whether defendant's dog was straying off-leash or on whether defendant resisted or obstructed the responding police officer. In May 2018, defendant was sentenced to 12 months in jail for the resisting-or-obstructing conviction and three months in jail for the stray-dog conviction. Id. at 1.
With respect to the instant charge and conviction, on May 29, 2019, at 10:03 a.m., defendant, no longer incarcerated, sent a message to BP through Facebook Messenger. The message, which defendant admitted sending to BP, stated:
The message is quoted exactly as sent by defendant.
Hey there you lying pc of sht, I hope yr proud of yourself. Your fkn lies cost me a year in jail, as the video clearly shows u weren't walking to clinic, werent charged by a dog, nor ran as fast as u could into clinic, cuz u were afraid the dog would bite u. U must have been coached by the cops, and were coherced into lying for then. U dont know the difference bwtween right and wrong, and based on ur writing skills, you MUST be fkn retarded. Goes around comes around, and Karma WILL fuck you, for the lies u told, and the harm you caused me from ur choice to lie. You should be ashamed of yourself, and I hope u suffer an extremely horrible death that causes u and ur family dire pain, like YOU put upon me, and consequences for being a lying little twerp who deserves to have his fkn tongue cut off, cuz if thats the BEST you can do with it, YOU DON'T NEED IT. Fk u and ur family, eat shit and die u lying pc of shit, middle finger high in the air to you, and when ur 18, Id love to show u how much I and my family appreciates your fkn lies. Fuck you[.]
On the basis of this message, the prosecutor charged defendant with witness retaliation under MCL 750.122(8), which provides:
A person who retaliates, attempts to retaliate, or threatens to retaliate against another person for having been a witness in an official proceeding is guilty of a felony punishable by imprisonment for not more than 10 years or a fine of not more than $20,000.00, or both. As used in this subsection, "retaliate" means to do any of the following:
(a) Commit or attempt to commit a crime against any person.
(b) Threaten to kill or injure any person or threaten to cause property damage.
The prosecution's theory at trial focused on the language in Subsection (8)(b) of the statute, with the prosecutor arguing that defendant retaliated against BP for his earlier testimony by threatening to kill or injure BP as communicated through Facebook Messenger.
At the preliminary examination, defendant contended that the message he sent to BP did not contain or constitute a threat to kill or injure BP. The district court disagreed and bound defendant over for trial. In the trial court, defendant moved "to dismiss the retaliation charge and/or for appropriate jury instructions." Defendant maintained that the evidence was insufficient to establish a violation of MCL 750.122(8). He also presented First Amendment challenges to the statute and its application. Defendant further asserted that the offense is a specific-intent crime. Defendant requested dismissal of the charge or, in the alternative, the reading of jury instructions that would protect his First Amendment rights and require the prosecution to establish specific intent. The trial court denied defendant's request to dismiss the charge, concluding that MCL 750.122(8) did not infringe any First Amendment protections and that there was sufficient evidence to go to trial on the charge of witness retaliation. The trial court also ruled that it would give the jurors the standard jury instruction on witness retaliation, M. Crim. JI 37.6, although, at the time, the court couched its ruling solely in regard to preliminary jury instructions. At trial, following the presentation of proofs and closing arguments, the trial court instructed the jury as follows regarding the offense of witness retaliation:
The defendant is charged with the crime of witness retaliation. To prove this charge the prosecutor must
prove each of the following elements beyond a reasonable doubt. First, that [BP] was a witness at an official proceeding.... Second, that the defendant retaliated, attempted to retaliate, or threatened to retaliate against [BP] for having been a witness. Retaliate means to commit or attempt to commit a crime against the witness or to threaten to kill or injure any person, or to threaten to cause property damage to the witness. The defendant's intent may be proved by what he said, what he did, how he did it, or by any other facts and circumstances in evidence.
These instructions, except for the final sentence, paralleled M. Crim. JI 37.6 verbatim. The last sentence is not found in M. Crim. JI 37.6 ; rather, it is a stand-alone instruction contained in M. Crim. JI 4.16, which addresses the various ways that "specific" intent can be proved. See People v. Maynor , 470 Mich. 289, 296, 683 N.W.2d 565 (2004) (the Maynor opinion is the only referenced citation in support of M. Crim. JI 4.16 following the Use Notes and History). We note that the trial court, consistently with its pretrial ruling, instructed the jury pursuant to M. Crim. JI 37.6 when the preliminary instructions were read. But, unlike the final jury instructions, the court said nothing about "[t]he defendant's intent" and M. Crim. JI 4.16 was not given.
About a half-hour after the jury began to deliberate, it sent a question to the trial court asking, "Does psychological injury count as injury under the law? Threaten to kill or injure." The jury returned to the courtroom, and, after the question was read on the record, the trial court responded, "The answer is, yes. Injury means bodily injury, disfigurement, chronic pain, or mental anguish." There is no indication in the record that the trial court discussed the responsive instruction with counsel beforehand, nor did the court ask counsel if they had any objections to the instruction. The jury then returned to its deliberations. Subsequently, the trial court noted on the record that it had received word that the jury had reached an impasse and that the court intended to give the jury an instruction and order continuing deliberations. The trial court gave the jury the deadlocked-jury instruction, M. Crim. JI 3.12. The jury resumed deliberations and eventually reached a verdict, finding defendant guilty of witness retaliation under MCL 750.122(8). Defendant moved for judgment notwithstanding the verdict (JNOV), arguing that the message to BP did not amount to witness retaliation, that the trial court erred by not giving an instruction on specific intent, and that the conviction was rendered in violation of the First Amendment. The trial court denied the motion for JNOV, and defendant appeals by right.
II. ANALYSIS
A. DEFENDANT'S ARGUMENTS ON APPEAL
On appeal, defendant first argues that MCL 750.122(8) violates the First Amendment under the overbreadth doctrine by improperly encompassing both protected and unprotected speech. Defendant further contends that the First Amendment was violated because although "true threats" are not a form of protected speech, specific intent has to be established to demonstrate a true threat, and the jury in the instant case was not instructed that the prosecution was required to prove specific intent. On a similar note, defendant maintains that there was instructional error because the trial court failed to read a mens rea element into MCL 750.122(8), i.e., that the prosecution had to establish that defendant specifically intended to threaten BP with injury or death. Next, defendant claims that the trial court effectively coerced a verdict in reading the deadlocked-jury instruction, thereby requiring reversal. In a Standard 4 brief and a supplemental Standard 4 brief, defendant raises numerous arguments, only two of which we need reach. First, defendant argues that the evidence was insufficient to support the conviction of witness retaliation. Second, defendant contends that the trial court erred by instructing the jury that a threat to injure for purposes of MCL 750.122(8)(b) includes a threat to inflict mental harm.
B. THE FIRST AMENDMENT, CRIMINAL INTENT, AND THE JURY INSTRUCTIONS
We review de novo issues of constitutional law. People v. Boomer , 250 Mich.App. 534, 538, 655 N.W.2d 255 (2002). Whether criminal intent is an element of an offense enacted into law by our Legislature is an issue of statutory construction and is therefore subject to de novo review on appeal. See People v. Tombs , 472 Mich. 446, 451, 697 N.W.2d 494 (2005) (opinion by KELLY , J.). "[J]ury instructions that involve questions of law are also reviewed de novo." People v. Schaefer , 473 Mich. 418, 427, 703 N.W.2d 774 (2005).
The First Amendment of the United States Constitution provides that "Congress shall make no law ... abridging the freedom of speech[.]" The First Amendment applies to the states through the Fourteenth Amendment. Virginia v. Black , 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). Protected speech under the First Amendment includes expressions or "ideas that the overwhelming majority of people might find distasteful or discomforting." Id. A bedrock principle underlying the First Amendment is that the government cannot prohibit speech simply because the populace finds the speech disagreeable or offensive. Id. The First Amendment, therefore, ordinarily deprives a state of the authority to prevent the dissemination of social, economic, and political doctrine that a vast majority of its citizens believe to be fraught with evil consequence. Id.
But the Black Court further explained:
The protections afforded by the First Amendment, however, are not absolute, and we have long recognized that the government may regulate certain categories of expression consistent with the Constitution.... The First Amendment permits restrictions upon the content of speech in a few limited areas, which are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.
Thus, for example, a State may punish those words which by their very utterance inflict injury or tend to incite an immediate breach of the peace.... We have consequently held that fighting words—those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction—are generally proscribable under the First Amendment. Furthermore, the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite
or produce such action. And the First Amendment also permits a State to ban a "true threat."
"True threats" encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.... The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility
that the threatened violence will occur. Intimidation[ ] in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. [ Id. at 358-360, 123 S.Ct. 1536 (quotation marks, citations, and brackets omitted).]
We note that, strictly speaking, this matter involves retaliation rather than intimidation.
Relying primarily on Black , this Court has acknowledged that there is no constitutional protection under the First Amendment for "true threats," which encompass "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." People v. Byczek , 337 Mich.App. 173, 184, 976 N.W.2d 7 (2021) ; see also People v. Gerhard , 337 Mich.App. 680, 687, 976 N.W.2d 907 (2021) ; TM v. MZ (On Remand) , 326 Mich.App. 227, 239, 926 N.W.2d 900 (2018). Accordingly, a penal statute that proscribes a person from making a "threat" must be interpreted as prohibiting "true threats" in order to pass constitutional muster under the Free Speech Clause of the First Amendment.
In this case, the prosecutor argued that defendant, in violation of MCL 750.122(8), retaliated against BP for his prior testimony by threatening to kill or injure him. Consistently with the prosecutor's theory, MCL 750.122(8)(b) provides that retaliation includes a "threat[ ] to kill or injure any person ...." Guided by the principle that "courts should construe statutes in such a manner as to render them constitutional," People v. Hayes , 421 Mich. 271, 284, 364 N.W.2d 635 (1984), we interpret MCL 750.122(8)(b) when defining the term "retaliate" as encompassing only "true" threats to kill or injure. And " ‘[t]rue threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals," although "[t]he speaker need not actually intend to carry out the threat." Black , 538 U.S. at 359-360, 123 S.Ct. 1536. Taking this definition of "true threats" enunciated by the United States Supreme Court and reading it in the context of MCL 750.122(8), we conclude that the term "retaliate" means, in part, to make a verbal or written statement in which the speaker or author meant to communicate a serious expression of an intent to kill or injure another person for having been a witness in an official proceeding. Albeit a bit nuanced, the relevant intent relates to intending to threaten a witness with death or injury or intending to communicate such a threat. The prosecution need not prove, however, that a defendant actually intended to carry out the threat.
Our ruling does not affect or concern the definition of "retaliate" found in MCL 750.122(8)(a) ("Commit or attempt to commit a crime against any person.").
We note that this proposition applies equally to circumstances involving a "threat[ ] to cause property damage." MCL 750.122(8)(b).
Our ruling effectively reads a "criminal intent" element into the offense of witness retaliation as charged and pursued by the prosecution in this case. By doing so, we no longer need to address defendant's contention that MCL 750.122(8) is overbroad in violation of the First Amendment and should thus be struck down: Defendant's overbreadth argument is premised on the absence of a "criminal intent" element. We also note that our ruling is consistent with our Supreme Court's observations in Tombs , 472 Mich. at 451, 697 N.W.2d 494 (opinion by KELLY , J.), wherein the Court stated:
"A statute is overbroad when it precludes or prohibits constitutionally protected conduct in addition to conduct or behavior that it may legitimately regulate." People v. Gaines , 306 Mich.App. 289, 320, 856 N.W.2d 222 (2014). We recognize that our holding could be viewed as finding MCL 750.122(8) overbroad as written, which constitutional defect is corrected by reading a criminal-intent element into the statute.
Joined in relevant part by Chief Justice Taylor . Tombs , 472 Mich. at 465, 697 N.W.2d 494 (opinion by Taylor , C.J.)
[T]o determine whether a statute imposes strict liability or requires proof of a guilty mind, the Court first searches for an explicit expression of intent in the statute itself.
Normally, criminal intent is an element of a crime. Statutes that create strict liability for all their elements are not favored. Hence, we tend to find that the Legislature wanted criminal intent to be an element of a criminal offense, even if it was left unstated. [Citations omitted.]
In the instant case, the trial court instructed the jury, consistently with M. Crim. JI 37.6, that to "[r]etaliate means to .... threaten to kill or injure any person ...." There was no elaboration on this instruction. The trial court then instructed the jury that "defendant's intent may be proved by what he said, what he did, how he did it, or by any other facts and circumstances in evidence." This instruction, which was consistent with M. Crim. JI 4.16, explained to the jury how specific intent can be proved, yet the court did not even instruct the jury that the prosecution had to prove specific or criminal intent to establish the crime of witness retaliation.
We hold that the jury was not properly instructed and that M. Crim. JI 37.6 lacks language necessary to avoid infringement of the First Amendment right to free speech. To satisfy the "true threat" exception to the Free Speech Clause, the jury needed to be instructed that the prosecution was required to prove beyond a reasonable doubt that defendant meant to express a serious intent to kill or injure BP, although the prosecutor did not have to prove that defendant actually intended to kill or injure BP. We need not explore whether this instructional error of constitutional magnitude was harmless, forfeited, or waived, considering that an additional instructional error discussed later in this opinion requires reversal. In any new trial held on remand, the court shall instruct the jury on witness retaliation consistently with this opinion.
We note that on appeal the prosecution attempts to play both sides of the fence, arguing that defendant's overbreadth argument fails because specific or criminal intent is inferred for purposes of MCL 750.122(8), while later contending that defendant's argument of instructional error fails because MCL 750.122(8) only requires proof of general intent.
We do highly question the prosecution's argument that defendant waived any instructional error by indicating that there was no objection to the court's instructions. The argument fails to recognize that defendant moved before trial for an instruction on specific or criminal intent.
C. SUFFICIENCY OF THE EVIDENCE
Defendant argues that there was insufficient evidence to prove beyond a reasonable doubt that the message sent to BP actually contained a threat to "kill" or "injure" BP. We examine this issue without contemplation of criminal intent and our determination of instructional error. It is necessary to address this issue because if the evidence was insufficient to show that the message spoke to defendant's killing or injuring BP, defendant would be entitled to an order of acquittal.
In People v. Kenny , 332 Mich.App. 394, 402-403, 956 N.W.2d 562 (2020), this Court set forth the well-established principles governing a sufficiency argument, observing as follows:
This Court reviews de novo whether there was sufficient evidence to support a conviction. In reviewing the sufficiency of the evidence, this Court must view the evidence—whether direct or circumstantial—in a light most favorable to the prosecutor and determine whether a rational trier of fact could find that the essential elements of the crime were proven beyond a reasonable doubt. A jury, and not an appellate court, observes the witnesses and listens to their testimony; therefore, an appellate court must not interfere with the jury's role in assessing the weight of the evidence and the credibility of the witnesses. Circumstantial evidence and any reasonable inferences that arise from such evidence can constitute satisfactory proof of the elements of a crime. The prosecution need not negate every reasonable theory of innocence; it need only prove the elements of the crime in the face of whatever contradictory evidence is provided by the defendant. All conflicts in the evidence must be resolved in favor of the prosecution. [Quotation marks and citations omitted.]
In this case, the message defendant sent to BP through Facebook Messenger included the following penultimate sentence: "when ur 18, Id love to show u how much I and my family appreciates your fkn lies." When this particular language is viewed in conjunction with earlier references in the message, including defendant's hope that BP suffers "an extremely horrible death" and that BP "deserves to have his fkn tongue cut off," a juror could reasonably infer that defendant was threatening to "kill" or "injure" BP for having testified against defendant in the earlier prosecution. Upon viewing the evidence in a light most favorable to the prosecution, resolving all conflicts in the evidence in favor of the prosecution and appreciating that it was for the jury to assess the weight of the evidence, we hold that the evidence and reasonable inferences arising from the evidence were sufficient to establish beyond a reasonable doubt that the message sent to BP contained a threat to "kill" or "injure" BP.
D. MENTAL ANGUISH OR PSYCHOLOGICAL INJURY
As indicated earlier in this opinion, after the jury began to deliberate, it sent a question to the trial court asking, " ‘Does psychological injury count as injury under the law? Threaten to kill or injure.’ " The trial court responded, "The answer is, yes. Injury means bodily injury, disfigurement, chronic pain, or mental anguish." Defendant argues on appeal that the trial court erred by essentially instructing the jury that retaliation includes threats to psychologically injure a witness.
We are somewhat confused by the jury's question because it suggests that the jurors were perhaps making inquiry in regard to the type of harm or injury BP suffered and not in regard to the nature of the threat defendant made against BP. Whether BP suffered mental anguish or psychological injury as a result of defendant's message was irrelevant to the prosecution's burden to prove the elements of the crime of witness retaliation. There existed a real danger that the jury convicted defendant on the basis that BP suffered mental anguish.
To the extent that the jury construed the trial court's response-instruction to mean that retaliation included threats to psychologically or mentally injure BP, it is still problematic and requires reversal. Again, MCL 750.122(8)(b) defines the term "retaliate" as meaning, in part, to "[t]hreaten to kill or injure any person ...." When construing a statute, we must ascertain and give effect to the Legislature's intent, and the words used in the statute reflect the most reliable indicator of legislative intent and should be interpreted on the basis of their ordinary meaning and the context within which the words are used in the statute. People v. Zajaczkowski , 493 Mich. 6, 13, 825 N.W.2d 554 (2012). When statutory language is unambiguous, the statute must be enforced as written, with no further judicial construction being permitted. People v. Pinkney , 501 Mich. 259, 268, 912 N.W.2d 535 (2018). When viewed in context, we conclude that the plain and unambiguous language of MCL 750.122(8)(b) demonstrates that the Legislature was addressing threats to kill or physically injure a witness. Employing the term "injure" directly after referencing the term "kill" reveals that the Legislature was focused on threats of a physical nature. Moreover, if the Legislature intended for the statute to encompass a threat to psychologically injure a witness, which seems a strained interpretation, it needed to expressly so provide to avoid the application of the rule of lenity. "The rule of lenity stands for the proposition that penal laws are to be strictly construed, with all doubts resolved in a defendant's favor," and "[t]he rule applies only when the statutory text is ambiguous[.]" People v. Arnold , 508 Mich. 1, 24, n. 51, 973 N.W.2d 36 (2021). Absent a specific reference to threats to mentally injure a witness, the statute is, at most, ambiguous on the issue. And the rule of lenity precludes extending the reach of the statute to threats of psychological injury. Reversal is warranted.
E. MISCELLANEOUS MATTERS
Defendant raises additional issues on appeal concerning the deadlocked-jury instruction, the scoring of the sentencing variables, the jury-selection process, and other matters that are rendered moot in light of our ruling reversing defendant's conviction and remanding the case for a new trial. We deem abandoned remaining issues defendant raised in his Standard 4 briefs because they are either indecipherable, entirely unsupported by citation to the record or law, or otherwise inadequately briefed for consideration. See Mudge v. Macomb Co. , 458 Mich. 87, 105, 580 N.W.2d 845 (1998).
We reverse and remand for new trial. We do not retain jurisdiction.
Shapiro, J., concurred with Markey, P.J.
Ronayne Krause, J. (concurring).
I concur in the outcome reached by the majority, but I respectfully conclude that defendant is entitled to a new trial for different reasons.
I. BACKGROUND
As the majority discussed, BP was a witness in a proceeding against defendant, Robert A. Johnson, Jr. Shortly after defendant was released from incarceration, he sent the following message to BP:
Hey there you lying pc of sht, I hope yr proud of yourself. Your fkn lies cost me a year in jail, as the video clearly shows u weren't walking to clinic, werent charged by a dog, nor ran as fast as u could into clinic, cuz u were afraid the dog would bite u. U must have been coached by the cops, and were coherced into lying for then. U dont know the difference bwtween right and wrong, and based on ur writing skills, you MUST be fkn retarded. Goes around comes around, and Karma WILL fuck you, for the lies u told, and the harm you caused me from ur choice to lie. You should be ashamed of yourself, and I hope u suffer an extremely horrible death that causes u and ur family dire pain, like YOU put upon me, and consequences for being a lying little twerp who deserves to have his fkn tongue cut off, cuz if thats the BEST you can do with it, YOU DON'T
NEED IT. Fk u and ur family, eat shit and die u lying pc of shit, middle finger high in the air to you, and when ur 18, Id love to show u how much I and my family appreciates your fkn lies. Fuck you[.]
Defendant was charged with witness retaliation, the definition of which I will discuss further later in this opinion. Defendant never disputed sending the message or that BP had been a witness against defendant at the prior trial. Rather, his theory of the case, as expressed in his opening statement to the jury, was that while the message was admittedly offensive, it contained only expressions of hope that something bad would happen to BP and no actual threats to kill or threats to injure. During closing argument, defendant conceded that BP had been frightened by the message, but defendant argued that BP's feelings were irrelevant and that nowhere in the message did defendant affirmatively state that he would do anything to BP.
In relevant part, the trial court instructed the jury as follows:
The defendant is charged with the crime of witness retaliation. To prove this charge the prosecutor must prove each of the following elements beyond a reasonable doubt. First, that [BP] was a witness at an official proceeding.... Second, that the defendant retaliated, attempted to retaliate, or threatened to retaliate against [BP] for having been a witness. Retaliate means to commit or attempt to commit a crime against the witness or to threaten to kill or injure any person, or to threaten to cause property damage to the witness. The defendant's intent may be proved by what he said, what he did, how he did it, or by any other facts and circumstances in evidence.
As the majority states, these instructions were a verbatim recitation of M. Crim. JI 37.6, appended by M. Crim. JI 4.16. Half an hour after the jury began deliberations, it sent a message, and the trial court made the following statement on the record:
Thank you. Please be seated. Ladies and gentlemen of the jury, the court has received a question from the bailiff. The question reads as follows,
"Does psychological injury count as injury under the law?"
And in quotes,
"Threaten to kill or injure."
Close quotes.
The answer is, yes. Injury means bodily injury, disfigurement, chronic pain, or mental anguish.
I will now excuse you to continue your deliberations.
The transcript indicates that all parties were present at the time, although the record does indicate that the trial court consulted with counsel before addressing the jury's question. However, the trial court did ask the attorneys after the jury resumed its deliberations whether they had "anything for the record," and both parties declined. A few hours later, the jury indicated that it had reached an impasse, and with the consent of both attorneys, the trial court read the deadlocked-jury instruction. The jury returned with its verdict of guilty approximately half an hour later. The jury was polled, and each juror affirmed that their verdict was guilty.
II. APPLICABLE STATUTORY LAW
Defendant was charged with witness retaliation under MCL 750.122(8), which provides:
A person who retaliates, attempts to retaliate, or threatens to retaliate against another person for having been a witness in an official proceeding is guilty of a felony.... As used in this subsection, "retaliate" means to do any of the following:
(a) Commit or attempt to commit a crime against any person.
(b) Threaten to kill or injure any person or threaten to cause property damage.
Under MCL 750.5, " ‘Crime’ means an act or omission forbidden by law which is not designated as a civil infraction" and may be punishable by imprisonment, a noncivil fine, removal from office, various kinds of disqualification, or "other penal discipline." Nowhere in MCL 750.122 is "injure" or "threaten" defined. However, MCL 750.2 provides that the "rule that a penal statute is to be strictly construed shall not apply to this act or any of the provisions thereof," but, rather, that the provisions of the Michigan Penal Code "shall be construed according to the fair import of their terms, to promote justice and to effect the objects of the law."
III. CONSTITUTIONALITY OF JURY INSTRUCTIONS
I entirely agree with, and will not repeat, the majority's conclusion, in Part II(B) of its opinion, that a "threat" under MCL 750.122(8)(b) must mean a "true threat" as described in Virginia v. Black , 538 U.S. 343, 358-360, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) ; see also People v. Byczek , 337 Mich.App. 173, 184, 976 N.W.2d 7 (2021) ; People v. Gerhard , 337 Mich.App. 680, 687, 976 N.W.2d 907 (2021) ; TM v. MZ (On Remand) , 326 Mich.App. 227, 239, 926 N.W.2d 900 (2018). However, I do not agree that the jury instructions, as written or as given, are therefore constitutionally infirm.
It is well established that jury instructions must be reviewed as a whole and in context. People v. Kelly , 423 Mich. 261, 270-271, 378 N.W.2d 365 (1985) ; see also People v. Traver , 502 Mich. 23, 40, 917 N.W.2d 260 (2018). Black defined a "true threat" as a statement "where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals," irrespective of whether the speaker "actually intend[ed] to carry out the threat." Black , 538 U.S. at 359-360, 123 S.Ct. 1536. The plain language of both the statute and M. Crim. JI 37.6 clearly restricts the class of threats that constitute a violation of the statute: threats to kill, threats to injure, or threats to cause property damage. All three of these possibilities obviously constitute "act[s] of unlawful violence." Black , 538 U.S. at 359, 123 S.Ct. 1536. Whether a particular communication included a "serious expression of intent" seeks to distinguish hyperbole and invective from speech calculated to place someone in fear of violence. See id. at 359-360, 123 S.Ct. 1536. The trial court's instruction regarding the determination of defendant's intent, in light of the extensive argument that defendant only intended to express hope that BP would suffer a dire fate, clearly communicated to the jury that it must determine whether defendant intended to promise harm upon BP or merely engage in crass invective. There is no contention that defendant sent the message by accident.
When the jury instructions are reviewed as a whole and in light of the entire proceedings, they clearly informed the jury—in substance, even if not in exactly so many words—that it must find the requisite intent to convey a "true threat." I respectfully do not agree with the majority that M. Crim. JI 37.6, at least as augmented by M. Crim. JI 4.16, is constitutionally infirm. I agree entirely with the discussion in Part II(C) of the majority opinion that the evidence was sufficient to establish beyond a reasonable doubt that defendant violated MCL 750.122(8). IV. TRIAL COURT RESPONSE TO JURY QUESTION
I nevertheless concur that defendant must be given a new trial. Like the majority, I find the jury's question regarding psychological injury confusing. It is possible, as the majority surmises, that the jurors believed it was relevant whether BP actually suffered harm as a consequence of defendant's threats. It is also possible, from the way the note was phrased by the trial court, that the jury misparsed its instructions and believed that "threaten to kill" was distinct from "injure," and thus actual injury was required if there had been no threat to kill or threat to cause property damage. There may be other possibilities, at which I could only guess. The trial court erred, in part, by failing to discuss the question with counsel, and it also erred by failing to recognize that the jury's question simply made no legal sense.
Insofar as I can determine, no copy of the jury's note was included in the record.
I conclude that it is a red herring whether "injury," as used in MCL 750.122(8)(b), may include psychological injury. However, because the majority chooses to address the issue, I respectfully disagree that the plain language of the statute necessarily compels the conclusion that it is restricted to physical injuries only. Although MCL 750.122 does not define "injure," elsewhere the Legislature has explicitly clarified whether an injury must be physical. For example, MCL 750.411s(8)(e), regarding posting a message through an electronic medium, defines "credible threat" as "a threat to kill another individual or a threat to inflict physical injury upon another individual that is made in any manner or in any context that causes the individual hearing or receiving the threat to reasonably fear for his or her safety or the safety of another individual." (Emphasis added.) I also note that governments may impose some content-based restrictions on speech if the goal is to avoid a " ‘secondary effect[ ],’ of the speech" so long as the restriction is necessary to serve a compelling interest and there is no content-neutral way to achieve the same result. R.A.V. v. City of St. Paul, Minnesota , 505 U.S. 377, 389–390, 394–396, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (citation omitted). The goal of protecting the sanctity of the entire justice system by protecting witnesses is certainly compelling; and injuries to, say, a person's reputation or mental state can be as harmful and effective at intimidation as injuries to a person's body. I am therefore not persuaded that "injury" as used in MCL 750.122(8)(b) plainly and unambiguously must be restricted to physical injuries. Furthermore, under MCL 750.2, the "rule of lenity" is inapplicable to statutes found within the Michigan Penal Code, MCL 750.1 et seq. See People v. Morris , 450 Mich. 316, 327, 537 N.W.2d 842 (1995). I would exercise judicial restraint and refrain from making a pronouncement about a definition that is not germane to the case before us.
As discussed, it was legally irrelevant whether BP suffered any actual injury. Indeed, it was legally irrelevant whether defendant genuinely intended to cause BP any actual injury. Importantly, defendant's message included numerous statements that implicitly or explicitly threatened physical injury to BP, but nothing that seemingly threatened psychological injury. There was, however, ample testimony that BP did, in fact, sustain psychological injuries. The jury's question should have alerted the trial court and the parties that the jury misapprehended that the touchstone of witness retaliation is the threat issued , not the harm sustained. The trial court's response, however, compounded that confusion instead of clarifying it. As discussed, there was more than ample evidence to find defendant guilty of witness retaliation for issuing a "true threat" to BP. Nevertheless, I agree with the majority that the trial court's response to the jury's question created an unacceptable danger that the jury instead convicted defendant on the impermissible basis of BP suffering actual injury, of whatever kind.
Again, psychological injury is a red herring in this appeal.
In summary, I find nothing improper or unconstitutional about the jury instructions—either as they were given before the jury began deliberations, or as they are written. Rather, I find that the trial court's improper response to the jury's question caused the jury to be, on the whole, improperly instructed. On that more limited basis, I concur with the majority's conclusion that defendant must receive a new trial.